Brooklyn Law Review
Volume 77 | Issue 3
Article 5
2012
A Modest Proposal: The Aged of Death Row
Should Be Deemed Too Old to Execute
Elizabeth Rapaport
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Recommended Citation
Elizabeth Rapaport, A Modest Proposal: The Aged of Death Row Should Be Deemed Too Old to Execute, 77 Brook. L. Rev. (2015).
Available at: http://brooklynworks.brooklaw.edu/blr/vol77/iss3/5
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A Modest Proposal
THE AGED OF DEATH ROW SHOULD BE DEEMED
TOO OLD TO EXECUTE
*
Elizabeth Rapaport†
INTRODUCTION
Clarence Ray Allen was seventy-six years old when he
was executed in California in 2006.1 The State of California
disputed Allen’s claims that he was handicapped and greatly
diminished by the infirmities of age.2 He used a wheelchair,
had endured both a heart attack and a stroke, was diabetic,
and claimed to be legally blind.3 The press coverage of his
execution made prominent mention of the fact that Allen did
indeed walk to the death chamber although supported by
guards, inviting the inference that he was a malingerer and
had exaggerated the toll of age and ill health.4 A deeper look
into the record reveals that he was escorted to the death
chamber by four burly guards, with whose support a paraplegic
could also have covered the short distance without other aid.5
The United States has a growing elderly death row
population; they are beginning to trickle into the execution
chamber. The Supreme Court has several times rebuffed efforts
*
© 2012 Elizabeth Rapaport. All rights reserved.
Elizabeth Rapaport, Dickason Professor of Law, University of New Mexico,
[email protected]. Megan Devine, University of New Mexico School of Law,
provided excellent research assistance. I am grateful to the UNM law library and
especially to Sherri Thomas. I thank Shawna MacLeod and Elizabeth Guidi, Brooklyn
Law Review, who proved to be excellent editors.
1
Inmates Executed, 1978 to Present, CAL. DEPARTMENT CORRECTIONS &
REHABILITATION, http://www.cdcr.ca.gov/Capital_Punishment/Inmates_Executed.html
(last visited Jan. 21, 2012).
2
See Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006).
3
Peter Fimrite, Allen Is First of Many Sick, Aged in Line at Death Row, S.F.
CHRON., Jan. 15, 2006, at A1, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/
c/a/2006/01/15/MNGBQGNOU31.DTL&ao=all.
4
Kevin Fagan, Allen Managed to Walk to Execution Gurney: In Final
Moments, Killer Didn’t Seem So Frail, S.F. CHRON., Jan. 18, 2006, at A1, available at
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/01/18/MNG9IGP0I91.DTL&ao=all.
5
Id.
†
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to gain Eighth Amendment protection from execution for the
long-serving condemned irrespective of their age, denying
certiorari to the Lackey claim. The Lackey claim urges that the
combination of long confinement in anticipation of death and
execution constitutes cruel and unusual punishment prohibited
by the Eighth Amendment. The chilly reception of the Lackey
claim by the Supreme Court is best explained not by its lack of
merit but rather by the devastating impact its recognition
would have on capital punishment. Execution in the United
States follows condemnation on average by more than a dozen
years. Hundreds of death row inmates have not had their cases
finally resolved twenty and thirty years after sentences were
pronounced. The ranks of the long serving are steadily growing.
Recognizing the Lackey claim would take the United States a
long way down the road to abolition. The Supreme Court has
been inhospitable to total abolition but willing to reform capital
punishment by trimming back the types of crimes and
criminals eligible for capital punishment. Unlike the general
Lackey claim, Lackey-for-the-Elderly is another such modest
reform. Lackey-for-the-Elderly is therefore more likely to
succeed than the wider claim. Its adoption would bring an end
to a practice that the Eighth Amendment ought not tolerate. It
would spare us the spectacle of the elderly being carried or
wheeled to the execution chamber after decades of growing old
in death row confinement in the name of American justice.
My exploration of the case for an Eighth Amendment bar
against executing the long-serving elderly will begin with a
review of the representation of the elderly on America’s death
rows and a survey of the very limited avenues of relief currently
available to them on the basis of age. I will then discuss the
attribution problem by asking at whose door should “fault” for
long delays between condemnation and consummation of a
capital sentence be laid—the prisoner, the state, or the working
through of due process? For many jurists, attribution of fault is
critical to resolving the question of whether the long serving of
any age should be permitted to exit death row alive. I will then
argue that the long-serving elderly should be relieved of both
death row confinement and the continuing threat of execution.
2012]
I.
A MODEST PROPOSAL
1091
LACKEY-FOR-THE-ELDERLY: A PROPOSAL FOR AN EIGHTH
AMENDMENT BAR TAILORED FOR ELDERLY DEATH ROW
INMATES
A prohibition against execution of the long-serving
elderly would amount to an age-specific version of the Lackey
claim. The Lackey claim takes its name from the eponymous
Clarence Lackey. In Lackey v. Texas, Lackey argued that after
seventeen years on death row his execution would be cruel and
unusual punishment forbidden by the Eighth Amendment.6 The
Supreme Court denied his petition for certiorari in 1995.
Justice Stevens wrote a memorandum to the denial of
certiorari stating that the question Lackey raised warranted
review, but should be allowed to percolate through the lower
courts before certiorari was granted.7 Since Lackey, the
Supreme Court has rebuffed a handful of similar petitions over
dissents from Justice Breyer from the denial of certiorari and
renewed statements by Justice Stevens that the Court should
in due course grant a Lackey petition and consider the issue on
its merits.8 The Lackey claim, although a staple in end-game
capital litigation, has yet to prevail in any U.S. court under the
Eighth Amendment or its analogs in the constitutions of the
thirty-four states that retain capital punishment.9 The Lackey
claim may well roil both abolitionists and retentionists.
Abolitionists may fear a time limit would portend a rush to
execute before the deadline. Retentionists may fear that a time
limit would be so great a curb on executions as to amount to
abolition, given a national average in excess of twelve years to
accomplish execution. The apprehension of the two camps will
be addressed in this article.
6
Lackey v. Texas, 514 U.S. 1045, 1045 (1995).
Id.
8
See, e.g., id.; Johnson v. Bredesen, 130 S. Ct. 541, 542 (2009); Thompson v.
McNeil, 129 S. Ct. 1299, 1299, 1303 (2009); Foster v. Florida, 537 U.S. 990, 991 (2002);
Knight v. Florida, 528 U.S. 990, 993 (1999); Elledge v. Florida, 525 U.S. 944, 944
(1998). In Thompson v. McNeil, Stevens broke with his practice of stating the issue
deserved a future hearing on the merits and proclaimed his support for granting the
petition. 129 S. Ct. at 1299. Petitioner Thompson had been on Florida’s death row for
thirty-two years. Id.
9
In Knight v. Florida, Justice Thomas notes that federal and state courts
considering Lackey claims since Lackey v. Texas “have resoundingly rejected the claim.”
Knight, 528 U.S. at 992 (Thomas, J., concurring). But see People v. Anderson, 493 P.2d
880, 894-95 (Cal. 1972) (holding capital punishment to be unconstitutional under the
California Constitution in part because of delays in carrying out sentences).
7
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Lackey claims ripen when a prisoner confronts an
execution date.10 The Lackey petitioner then argues that the
imposition of execution on the heels of the long death row
confinement constitutes excessive punishment prohibited by
the Eighth Amendment. These petitions also urge that longterm death row confinement may itself constitute cruel
punishment. Justice Stevens and Justice Breyer are clearly in
sympathy with both theses.11 Some international courts and the
constitutional courts of some nations have held that a lengthy
period awaiting execution constitutes cruelty and have required
that prisoners be spared exposure to extended periods of time
under sentence of death quite apart from the imminence of the
threat of execution.12 Because of their inevitable frailties,
constitutional questions about long-term confinement and
subsequent execution arise in an acute form when we focus on
the aged of death row. No attempt will be made here to specify
precisely the geriatric threshold that would trigger the
protection of a Lackey-for-the-Elderly regime—whether
chronological age or deterioration and vulnerability associated
with aging processes. Such practical considerations can be left
for the time at which the Eighth Amendment questions raised
here have gained the ear of the American bench.
The question of whether the Eighth Amendment should
afford shelter to the aged of death row can be parsed into two
related inquiries. First, is it prohibited cruelty to confine
persons beyond a certain chronological age, or those exhibiting
the deterioration associated with old age, in death row
conditions? And second, is it prohibited cruelty to execute aged
condemned prisoners? Of these two issues, the first may
perhaps be more readily acknowledged as raising a valid
Eighth Amendment issue: whatever conclusion one might
ultimately reach on the question, the proposition that death
row conditions exact a greater toll on the physically and
mentally frail or infirm does not appear controversial. I will
argue that the Eighth Amendment should be construed to
10
Ceja v. Stewart, 134 F.3d 1368, 1371 (9th Cir. 1998) (Fletcher, J., dissenting).
Johnson, 130 S. Ct. 541 (Stevens, J., joined by Breyer, J., mem. respecting
denial of cert.); Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., mem. respecting
denial of cert.).
12
Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A) at 44 (1989) (holding
that extradition of a defendant to Virginia where he would face years on death row if
capitally sentenced constituted a violation of Article 3 of the European Convention on
Human Rights); Pratt v. Jamaica, (1994) 2 AC 1 (P.C.) (appeal taken from Ct. App.
Jam.) (holding that a delay of fourteen years before carrying out an execution violated
section 17(1) of the Jamaican Constitution).
11
2012]
A MODEST PROPOSAL
1093
relieve the elderly condemned from both death row
incarceration and the long-serving elderly condemned from the
continued threat of execution—thus, Lackey-for-the-Elderly.
II.
THE AGED OF DEATH ROW BY THE NUMBERS
It will be useful to begin by examining the facts and
statistics that reveal the extent of the elderly population on
death row and the reasons for its continuing growth. This
exercise will demonstrate that there are good reasons to expect
that courts and prison administrations will be confronting what
to do with the aged condemned not as an occasional anomaly but
as a recurrent issue in death-penalty law and practice.
Clarence Ray Allen was the fourth septuagenarian to be
executed since 2004.13 A fifth was executed in 2010.14 Three men
sixty-five or older have also been executed since 2002.15 Prior to
2002 only one person sixty-five or older, a sixty-six-year-old,
had been executed in the entire history of the modern deathpenalty era commencing with the reinstatement of capital
punishment in 1976. That execution occurred in 1984.16
These executions of persons in their late sixties and
seventies reflect the graying of death row. In 2000, only 2.3
percent of death row prisoners were sixty or older; 11.1 percent
were fifty to fifty-nine.17 In 2009, 2.6 percent were sixty-five or
older and 5.6 percent between sixty and sixty-four; 21.1 percent
were age fifty to fifty-nine.18
13
The other over-seventy prisoners executed were James Hubbard, age
seventy-four, executed August 5, 2004, in Alabama; John Nixon, age seventy-seven,
executed December 14, 2005, in Mississippi; and John Boltz, age seventy-four, executed
June 1, 2006, in Oklahoma. Death Penalty Information Center, Execution Database,
DEATH PENALTY INFO. CENTER, http://www.deathpenaltyinfo.org/executions (last visited
Apr. 16, 2011).
14
Gerald Holland, age seventy-two, was executed in Mississippi on May 20,
2010. Id.
15
Id.
16
Id.
17
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CAPITAL
PUNISHMENT 1999, at 9 tbl.8 (2000) [hereinafter CAPITAL PUNISHMENT 1999], available
at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp99.pdf.
18
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CAPITAL
PUNISHMENT, 2009—STATISTICAL TABLES 9 tbl.5 (2010) [hereinafter CAPITAL
PUNISHMENT 2009], available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp09st.pdf.
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Table 1: Percentage of Death Row Prisoners over Age
Fifty in the United States19
14
12
10
8
1999
6
2009
4
2
0
50-54
55-59
60 +
Table 2: Number of Death Row Prisoners over Age Fifty
in the United States20
450
400
350
300
250
1999
200
2009
150
100
50
0
50-54
19
55-59
60+
CAPITAL PUNISHMENT 1999, supra note 17; CAPITAL PUNISHMENT 2009,
supra note 18.
20
CAPITAL PUNISHMENT 2009, supra note 18, at 9 tbl.5.
2012]
A MODEST PROPOSAL
1095
The reason for this change is not a wave of capital crimes
by the elderly.21 Rather, it is one awkward consequence of the
contemporary capital punishment regime. A capital sentence
marks the beginning of a potentially decades-long incarceration.22
Final resolution of capital cases—whether by execution or
sentence reduction and removal to general prison population—
can take decades, and for many long-serving inmates, resolution
has not yet come. In this system, a modest 15 percent of persons
sentenced to die since 1977 have been executed, while more than
40 percent of those sent to death row at any time from 1977
forward are still there and growing older.23
Table 3: Average Elapsed Time from Sentence to
Execution (Years)24
14
12
10
8
Time on
Death Row
6
4
2
21
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
0
Id. This table shows that while 29.3 percent of prisoners on death row in
2009 were over fifty, these prisoners represented only 14.4 percent of the additions to
death row that year.
22
Id. at 12 tbl.9 & 14 tbl.12. Table 9 shows that in 2009, the average death
row prisoner had been on death row for 152 months, or approximately 12.6 years. Table
12 shows that the average time between sentencing and execution in 2009 was 169
months, or 14.1 years.
23
Id. at 16 tbl.14.
24
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CAPITAL
PUNISHMENT, 2008—STATISTICAL TABLES (2009) [hereinafter CAPITAL PUNISHMENT 2008],
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cp08st.pdf; CAPITAL PUNISHMENT 2009,
supra note 18.
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Almost all the states that lead the country in number
and frequency of executions as well as the less execution-prone
death-penalty states have elderly death row inmates.25 These
inmates include people condemned in their fifties and sixties,
but the majority of these older death row inmates have been on
death rows for twenty, twenty-five, and thirty years.26 Thus,
state and federal courts and clemency authorities can expect to
confront the issue of whether to proceed with the execution of
aged inmates long incarcerated on death row with increasing
frequency in the years to come.
Old age comes early to prison populations, because the
population is unhealthy at entry and prison conditions are
generally inimical to physical and mental health.27 In an era
when “sixty is the new forty” for free Americans, prison health
experts treat the onset of old age in prison as commencing as
early as fifty.28 No legislature has enacted capital punishment
as a sentence expressly to include decades spent ripening into
old age on death row, but death sentences in almost every
death-penalty jurisdiction now have that potential—and for a
growing number of inmates, that reality.29 Relative to the
conditions of the general prison population, the more rigorous
conditions of confinement on death row take a greater toll on
25
Several of the most active death penalty states have prisoners over sixty.
For example, as of February 2011, six of Georgia’s ninety-eight death row prisoners
were over age sixty. GA. DEP’T CORR., INMATE STATISTICAL PROFILE: UNDER DEATH
SENTENCE (2011), available at http://www.dcor.state.ga.us/Research/Monthly/Profile_
death_row_2011_02.pdf. As of March 23, 2011, fifteen of Ohio’s 156 death row inmates
are over sixty. Death Row Inmates, OHIO DEP’T REHABILITATION & CORRECTION,
http://www.drc.ohio.gov/public/deathrow.htm (last visited Mar. 26, 2011). As of March 27,
2011, five of Alabama’s 203 death row inmates were over sixty. Alabama Inmates
Currently on Death Row, ALA. DEP’T CORRECTIONS, http://www.doc.state.al.us/
deathrow.asp (last visited Mar. 27, 2011). As of March 1, 2011, one of South Carolina’s
fifty-five death row inmates was over sixty. S.C. DEP’T OF CORR., LIEBER CORRECTIONAL
INSTITUTION: DEATH ROW ROSTER (2012), available at http://www.doc.sc.gov/news/
deathrowlist.pdf. As of March 27, 2011, fifty of Florida’s 394 death row prisoners were over
sixty. Death Row Roster, FLA. DEP’T CORRECTIONS, http://www.dc.state.fl.us/activeinmates/
deathrowroster.asp (last visited Mar. 27, 2011).
26
As of December 31, 2009, 196 of California’s 684 death row prisoners (or
approximately 28.7 percent) had been under sentence of death for more than twenty
years. In Florida, 117 out of 389 (or approximately 30 percent) death row prisoners had
been on death row for more than twenty years. CAPITAL PUNISHMENT 2009, supra note
18, at 19 tbl.18.
27
Ronald H. Aday, Golden Years Behind Bars: Special Programs and
Facilities for Elderly Inmates, 58 FED. PROBATION 47 (1994).
28
Timothy Curtin, The Continuing Problem of America’s Aging Prison
Population and the Search for a Cost-Effective and Socially Acceptable Means of
Addressing It, 15 ELDER L.J. 473 (2007).
29
CAPITAL PUNISHMENT 2008, supra note 24, at 14 tbl.11; see also Richard Willing,
Death Row Population Is Graying, USA TODAY (Feb. 11, 2005), http://www.usatoday.com/
news/nation/2005-02-09-elder-death_x.htm.
2012]
A MODEST PROPOSAL
1097
the minds and bodies of these inmates and therefore
exacerbate the decline and distress of older prisoners.30 These
conditions include severely limited opportunities for exercise or
work, social isolation, lack of stimulation and contact with the
world beyond prison gates, and, in particular, lack of contact
with family and friends.31 To these conditions must be added
the background condition of living with the prospect of
execution.32
III.
CURRENTLY AVAILABLE RELIEF
An aged death row inmate has at the present time two
potential avenues of relief that address his or her age. If he is
far into senility, he can argue—in the parlance of the common
law—that he is no longer of sound memory. Ford v. Wainwright
constitutionalized this common law rule by holding that the
execution of a person incapable of understanding that he is
being executed for committing a heinous crime is forbidden by
the Eighth Amendment.33 Ford was argued in habeas petitions
by two of the executed septuagenarians.34 Although a Ford
claim has yet to prevail, if States continue to execute persons of
such advanced age, some Ford claims will eventually succeed.
The Ninth Circuit Court of Appeals offers a second avenue of
relief, available to death row prisoners befuddled by age but
not lost in advanced senility. In Rohan ex rel. Gates v.
Woodford, the court recognized a statutory right to be
competent to assist counsel in capital habeas cases.35 A death
row inmate who cannot rationally communicate with habeas
counsel may stay habeas proceedings and execution. The
30
JEREMY L. WILLIAMS, THE AGING INMATE POPULATION: SOUTHERN STATES
OUTLOOK (2006), available at http://www.slcatlanta.org/Publications/HSPS/aging_
inmates_2006_lo.pdf; see also ANNUAL REPORT OF THE CMA, INCARCERATING ELDERLY
AND AGING INMATES: MEDICAL AND MENTAL HEALTH IMPLICATIONS, available at
http://www.doh.state.fl.us/cma/reports/agingreport.pdf (“Because of the impact of lifestyle,
medical care, and environmental factors in the aging process, correctional agencies
should adopt age 50 as the chronological starting point for defining elderly offenders.”).
31
Robert Johnson, Under Sentence of Death: The Psychology of Death Row
Confinement, 5 LAW & PSYCHOL. REV. 141, 142-43 (1979) (discussing the physical and
psychological effects of death row confinement).
32
Kate McMahon, Dead Man Waiting: Death Row Delays, the Eighth
Amendment and What Courts and Legislatures Can Do, 25 BUFF. PUB. INT. L.J. 43
(2007) (discussing “death row phenomenon”).
33
Ford v. Wainwright, 477 U.S. 399 (1986).
34
Clarence Ray Allen and James Hubbard both presented this argument in
their habeas corpus petitions. See Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006);
Hubbard v. Campbell, 379 F.3d 1245 (11th. Cir. 2004).
35
Rohan ex rel. Gates v. Woodford, 334 F.3d 803 (9th Cir. 2003).
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Rohan decision makes it possible to remove some elderly from
death row before a Ford claim would be ripe and on a less
demanding standard. In his opinion in Rohan, Judge Kozinski
in effect reduced the standard on which a prisoner can stay
execution from the very demanding Ford standard to the Dusky
standard of incompetent to assist counsel.36 The stay would
necessarily be permanent in the case of a habeas petitioner
with irreversible loss of mental function.37 For example, Leroy
Nash, the oldest inmate on death row at ninety-four years old
until his death in 2010, won a stay when the court of appeals
extended the right to be competent to assist counsel in capital
habeas cases to appeals from denials of habeas.38 In Nash v.
Ryan, the Ninth Circuit Court of Appeals clarified the standard
to be applied, namely, “whether rational communication with
the petitioner is essential to counsel’s ability to meaningfully
prosecute an appeal.”39 Leroy Nash subsequently left death row
and died in a medical facility.40 Nash may be the first death row
inmate to exit death row because he was too old to execute.
However, both Ford and Rohan can afford relief only to
the elderly seriously compromised in their mental function.
What of the more mentally fit elderly marking off the decades
on death row? What are the prospects for a constitutional
categorical exclusion of the elderly from execution after long
incarcerations on death row?41
36
Id. at 816-17.
To date, no other federal circuit has either followed or rejected Rohan.
However, in Holmes v. Buss, Judge Posner bolstered the Rohan analysis although he
found it unnecessary to either accept or reject Rohan because its “validity has
throughout these proceedings been assumed rather than litigated.” 506 F.3d 576, 578
(7th Cir. 2007). He elaborated Judge Kozinski’s defense of the standard of rational
communication with counsel as appropriate in habeas, and discussed prosecutorial
misconduct and ineffective assistance of counsel as examples of where a lay defendant’s
recollections may well assist habeas counsel. Id. at 579-80.
38
Nash v. Ryan, 581 F.3d 1048 (9th Cir. 2009).
39
Id. at 1054.
40
Oldest U.S. Death Row Inmate Dies Aged 94, BBC NEWS (Feb. 14, 2010,
10:10 PM), http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/8515573.stm.
41
The exclusion under discussion would not bar capital adjudication of
persons who kill at an advanced age. Such a bar would be analogous to that recognized
for youthful murderers in Roper v. Simmons. Rather, the nature of the exclusion
explored in this article is analogous to that in Ford v. Wainwright prohibiting the
execution of a prisoner convicted and capitally sentenced who subsequently becomes
incompetent to execute by virtue of insanity. Unlike the Ford prohibition, there would
be no possibility that the aged prisoner would be restored to fitness and executable,
unless medical advances allow the processes of aging to be reversed.
37
2012]
IV.
A MODEST PROPOSAL
1099
THE ATTRIBUTION PROBLEM: WHO IS RESPONSIBLE FOR
DELAY IN CONSUMMATING EXECUTIONS?
A proponent of any type of Lackey claim must address
the attribution problem that has bedeviled discussions of the
issue (for death row prisoners of any age) in domestic, foreign,
and international courts; for many readers attribution would
be the essential starting point of a Lackey discussion, if not the
heart of the matter. At whose door should responsibility for
delay be placed? Should it be charged to legal maneuvering by
the prisoner to delay execution of a sentence, the normal courseof-review processes, or dilatory (or worse) conduct by the state?
Judges throughout the world have wrestled with the attribution
question. They have differed sharply as to the proper attribution
of responsibility for delay and the inferences to be drawn as to
whether the human or constitutional rights of prisoners have
been violated. Justice Stevens took the position on attribution in
Lackey—to which he and Justice Breyer have subsequently
adhered—that prisoners should not be held responsible for
delays caused by state “negligence or deliberate action,”42 or “a
petitioner’s legitimate exercise of his right of review.”43 However,
these justices would debit delay caused by “abuse of the judicial
system by escape or repetitive, frivolous[] filings” in calculating
time on death row that may require relief.
Justice Thomas rejected this analysis in his
concurrences in the Lackey cases, in which a spirited serial
debate has transpired between pro-Lackey Justices Stevens
and Breyer and anti-Lackey Justice Thomas. Justice Thomas is
among those judges who lose patience when asked to consider
delay as cruelty visited on prisoners that may support an
Eighth Amendment claim. Particularly when there has been a
confession, Justice Thomas is disposed to argue that the
prisoner could avoid delay by submitting to his sentence.44
Perhaps the emphasis on conceded guilt relieves the justice of
any acknowledged need to consider the weight of delay in
supporting a petition when the State has been negligent or
42
Lackey v. Texas, 514 U.S. 1045, 1047 (1995).
Id.
44
Thompson v. McNeil, 129 S. Ct. 1299, 1301 (2009); Foster v. Florida, 537 U.S.
990, 991 (2002). Having noted that Foster was a confessed murderer who could have
avoided delay by submitting to his sentence, Justice Thomas adds, “Moreover, this
judgment [on Foster by the people of Florida] would not have been made had petitioner
not slit Julian Lanier’s throat, dragged him into the bushes, and then, when petitioner
realized he could hear Lanier breathing, cut his spine.” Foster, 123 S. Ct. at 471.
43
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BROOKLYN LAW REVIEW
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deliberately caused delay; at any rate, Justice Thomas did not
address delay attributable to the state. He did, however,
address delay caused by time for the judicial review available
to a death row inmate to run its course: Thomas found a
“mockery of our system of justice . . . for a convicted murderer”45
to claim delay “renders his sentence unconstitutional”46 when
the postponement is a result of “his own interminable efforts of
delay.”47 He noted, “I remain ‘unaware of any support in the
American constitutional tradition or in this Court’s precedent
for the proposition that a defendant can avail himself of a
panoply of appellate and collateral procedures and then
complain when his execution is delayed.’”48 There is little doubt
that if the issue is to be resolved by Eighth Amendment
precedent, Justice Thomas’s position prevails. Further, for
those who like him see only the machinations of heinous
criminals and abolitionists’ interminable ploys, the response to
the suggestion that delay compromises the constitutional
integrity of the sentence is moral outrage.49
Justices Stevens and Breyer treat state-caused delay as
building towards some number of years, which, if exceeded,
ought to constitutionally prohibit execution. Justice Stevens
points to the “staggering”50 error rate in capital trials, more
than “30 percent of death verdicts overturned.”51 Justice Breyer
takes issue with Justice Thomas for failing to distinguish
between delay caused by “constitutionally defective deathpenalty procedures for which petitioner was not responsible”52
and delay that is petitioner’s “fault.”53
Neither “delay” nor “fault” attributable to the actions of
either state actors or the defendant and his abolitionist lawyers
adequately explains the dozen and more years it takes on
average to deliver the condemned to the execution chamber in
the United States. The complexity of the system and the
demands for legal and judicial resources to carry cases through
45
Thompson, 129 S. Ct. at 1301 (Thomas, J., concurring in denial of certiorari)
(quoting Turner v. Jabe, 58 F.3d 924, 933 (4th. Cir. 1995) (Luttig, J., concurring)).
46
Id.
47
Id.
48
Id. (quoting Knight v. Florida, 528 U.S. 990 (1999)).
49
Turner, 58 F.3d at 933 (Luttig, J., concurring) (quoted with approval by
Thomas in Thompson and in Knight; has both criminals and abolitionists in his sights
when he characterizes the defendant’s Lackey claim as “an affront to lawabiding citizens”).
50
Thompson, 129 S. Ct. at 1300.
51
Id.
52
Id. at 1303 (Breyer, J., dissenting).
53
Id. (Thomas, J., concurring).
2012]
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the many appellate and postconviction stages are “responsible”
for as much or more delay within the system taken as a whole
than the machinations, misconduct, or errors of actors within
the system.54 “Delay” is not the most apt term for the years
between sentence and execution in many retentionist countries
across the globe; with the benefit of contemporary standards of
due process in death cases, retentionist countries cannot execute
in “days or weeks”55 as our forbearers did, but many years or
even decades after conviction and sentence. The most salient
factor is unlikely to be delay attributed wholly to the defendant
or the state but “delay” attributed to the complexity of, and
resource limitations in, the death-penalty review system. Thus,
the response of a judge to time consumed by the operation of the
many tiered capital punishment regime is especially important
in his or her analysis of the attribution problem.
Justice Thomas attributes what could be termed
“systemic delay” to prisoners in their efforts to delay or prevent
execution. It would be a “mockery of justice” from the
perspective of many retentionists to allow prisoners who have
failed again and again to persuade courts of errors in their
convictions or sentences to then claim immunity from
execution.56 The logic of this position was captured by the Ninth
Circuit in Judge O’Scannlain’s opinion in McKenzie v. Ray: “It
would indeed be a mockery of justice if the delay incurred during
the prosecution of claims that fail on the merits could itself
accrue into a substantive claim to the very relief that had been
sought and properly denied in the first place.”57 Justice La Forest
made the same point powerfully in Kindler v. Canada: “It would
be ironic if delay caused by the appellant’s taking advantage of
the full and generous avenue of the appeals available to him
should be viewed as a violation of fundamental justice.”58
54
The delays in the appellate system have been discussed by many authors.
In his 2007 law review article, Judge Arthur Alarcon points to twenty institutionally
created delays in the postconviction process, including delays in appellate and habeas
counsel, delays in reporter transcription, and delays in the issuance of orders and
certifications. Arthur L. Alarcon, Remedies for California’s Death Row Deadlock, 80 S.
CAL. L. REV. 697 (2007).
55
Knight v. Florida, 528 U.S. 990, 995 (1999) (Breyer, J., dissenting). Other
countries that retain the death penalty in the twenty-first century have elapsed times
between sentence and execution comparable to those in the United States. See HOOD &
HOYLE, THE DEATH PENALTY: A WORLDWIDE PERSPECTIVE 76, 173-74 (4th ed., Oxford 2008).
56
Knight, 528 U.S. at 993 (Thomas, J., concurring).
57
McKenzie v. Day, 57 F.3d 1493, 1494 (9th Cir. 1995).
58
Knight, 528 U.S. at 998 (quoting Kindler v. Minister of Justice, [1991] 2
S.C.R. 779, 779, 838 (Can.)).
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However, what some see as reprehensible maneuvering
others see as legitimate appeals to test conviction and sentence.
Thus, Justice Breyer explains, “I do not believe that a
petitioner’s decision to exercise his right to seek appellate review
of his death sentence automatically waives a claim that the
Eighth Amendment proscribes a delay of more than 30 years.”59
Judges who regard contemporary enhanced due process
standards of review of capital cases favorably are also inclined
to regard the efforts of prisoners to avail themselves of these
processes as manifestations of human nature, the will to live.
In Soering v. United Kingdom, the European Court of Human
Rights opines that, “just as some lapse of time between
sentence and execution is inevitable if appeal safeguards are to
be provided to the condemned person, so it is equally part of
human nature that the person will cling to life by exploiting
those safeguards to the full.”60 Mde. Christine Chanet quotes this
passage from Soering to support her dissent in Barrett and
Sutcliffe v. Jamaica, in which she wrote, “Without being at all
cynical, I consider that the author cannot be expected to hurry
up in making appeals so that he can be executed more rapidly.”61
Judges have observed that the very human desire to live
renders a prolonged period in which a prisoner contests his
sentence intolerably inhumane. Thus, Lord Scarman and Lord
Brightman state in their Riley v. Attorney General of Jamaica
dissent, “In truth, it is this ineradicable human desire which
makes prolongation inhuman and degrading.”62
Agreeing with the dissenters in Riley that it is human
nature to fight to live, the Supreme Court of India repudiates
the attribution question itself:
We think that the cause of delay is immaterial when the sentence is
death. Be the cause for the delay, the time necessary for appeal and
consideration of reprieve or some other cause for which the accused
himself may be responsible, it would not alter the dehumanizing
character of the delay.63
At first blush, the presentation of the attribution issue by
Justice Stevens in Lackey suggests that a calculus might be
employed by judges to determine whether, in a given case, the
period of death row incarceration had exceeded the humane
59
60
61
62
63
Thompson v. McNeil, 129 S. Ct. 1299, 1303 (2009).
Soering v. United Kingdom, 11 Eur. Ct. H.R. (ser. A) (1989).
Sutcliffe v. Jamaica, Communication No. 271/1988: Jamaica. 06/04/92.
Riley v. Attorney General of Jamaica, 1 A.C. 719 (1983).
Vatheeswaran v. State of Tamil Nadu, 1983 A.I.R. 361 (India).
2012]
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limit. However, because—like the rest of us—judges tend either
to attribute systemic delay to prisoners or decline to do so, there
is no neutral attribution calculus for deciding Lackey petitions.
In the bulk of cases, the delay attributable to egregious conduct
on the part of the state or the prisoner will be dwarfed by that
attributable to the operation of the contemporary death-penalty
system. The attribution question devolves into a choice between
two views of the condemned in the toils of the contemporary
death penalty with its robust due process protections: the
manipulator, who showed no pity in taking life and now parades
his own suffering; or the condemned human being compelled by
human nature to fight off annihilation year on year, in
degradation of the law and his own humanity. The choice
between these two views must fall to the voting strength of their
adherents on constitutional courts or in legislative chambers.
The same fault lines of judicial orientation on this issue are
observable among U.S. jurists and those serving on foreign and
international courts. While the U.S. Supreme Court is famously
divided on the question of whether foreign and international
judicial opinions should have even persuasive force in U.S.
constitutional law,64 there are among these extranational sources
opinions that resonate for both pro- and anti-Lackey justices,
should they choose to pay heed to them.
As for the elderly of death row—the particular subject of
this article—within the terms of the attribution debate, their
circumstances are much like those of other long-serving death
row prisoners. Whatever the quantity or quality of their
distress—like their younger peers—some will see them as
manipulators and others as suffering intolerably inhumane
treatment. There is, however, one salient difference in that at
least some of the elderly may no longer be capable of
strategizing. Thus, if charged with any delay beyond that point,
it would result from the fact that they are constructively
accountable for the wiles of their attorneys.
64
For example, in Roper v. Simmons, holding that murderers less than
eighteen years of age when they killed are categorically exempt from capital
punishment, Justice Kennedy, writing for himself and four other justices, relied
extensively on the persuasive force of foreign and international opinions. 543 U.S. 551,
567-68, 575-79 (2005). Justice Scalia vehemently contested this reliance in a dissent
joined by Chief Justice Rehnquist and Justice Thomas. Id. at 622-28 (Scalia, J.,
dissenting). Justice O’Connor, who dissented on separate grounds, made no objection to
the majority’s reliance on offshore law. Id. at 604 (O’Connor, J., dissenting).
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THE EIGHTH AMENDMENT DOES NOT TOLERATE DEATH
ROW CONFINEMENT FOR ELDERLY PRISONERS—OR
WON’T SOON
Let us turn to the first question raised by the proposal
for Lackey-for-the-Elderly: should the Eighth Amendment be
understood to forbid death row incarceration of persons who
reach the stipulated age or exhibit the infirmities and
limitations of old age?
The long confinement of prisoners on death row is a
historical novelty. Traditionally, a prisoner was sent to death
row in transit to eternity; death row stays were measured in
days, weeks, and months, not decades.65 The prisoner who had
no earthly future was to devote the death row interlude to
making peace with his or her Maker as best he or she could.
The justification for the bleak and barren nature of death row
confinement66 is therefore linked to the liminal status of the
condemned; their needs resembled those dying in freedom more
than prisoners serving terms of years. The transitory nature of
death row is no longer available as a justification for
confinement in death row conditions for persons of any age: the
transition justification for imposing these conditions cannot be
sustained for twenty or thirty years.
Contemporary prison administrators, however, like
their predecessors in earlier periods, confront security
challenges in managing death row populations: there are
dangerous and desperate inmates among their charges. Death
row conditions are justified as necessary to provide security
dealing with dangerous prisoners with little to lose. The Eighth
Amendment’s cruel and unusual punishment ban has been
consistently construed to afford prison officials wide discretion
to achieve security, order, and discipline and to offer little relief
65
By the mid-twentieth century, prior to the reforms initiated in 1976 in
Gregg v. Georgia, executions took place within months or (a very few) years after
condemnation. Of the 227 executions carried out in the United States from 1956 to
1959, almost half (107) occurred within one year of the sentence—thirty-eight within
six months—and two-thirds occurred within two years of the sentence. Only fifteen
executions occurred more than four years after the sentence. WILLIAM LUNDEN, BD. OF
CONTROL OF STATE INSTS., THE DEATH PENALTY, AN ANALYSIS OF CAPITAL
PUNISHMENT AND FACTORS RELATED TO MURDER 12 (1960).
66
Many jurisdictions prohibit death row inmates from contact visits. They are not
given access to educational or occupational training. Death row inmates spend between
twenty-one and twenty-three hours a day in their cells (most of which have solid doors that
impede human contact), and many are not given access to any group recreation time. See
Death Row Facts, DEATH PENALTY INFO. CENTER, http://www.deathpenaltyinfo.org/deathrow (follow “Death Row Conditions” hyperlink) (last visited Mar. 26, 2011).
2012]
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to prisoners contesting prison conditions in light of these
security considerations.67 To be sure, the Eighth Amendment
does protect prisoners from inhumane treatment and
conditions.68 However, in Wilson v. Seiter, the Court recognized
that, while the Eighth Amendment forbad serious deprivation
of prisoners’ basic human needs, it did so only when prison
personnel acted with deliberate indifference to those needs.69
Wilson presents a severely circumscribed notion of what
constitutes the basic needs of prisoners: “food, warmth or
exercise”70 and medical care.71
In addition to the narrowness of the conception of
human need and the burden of establishing that prison
personnel were at least reckless in contemplating the
deprivation, the Court has rendered any prisoner’s efforts to
redress prison conditions more difficult by adopting a balancing
test under which security interests weigh heavily against even
the most basic needs of prisoners. Thus Justice O’Connor, in
Whitley v. Albers—a case whose facts turned on a prisoner’s
being shot during the quelling of a prison disturbance—
weighed the interest of a prisoner in his physical security
against the broader security interests for which prison officials
are responsible: when security interests are challenged, the
“deliberate indifference standard” must give way to a simple
good-faith standard.72 The following year, in Turner v. Safley,
Justice O’Connor summarized and reinforced the holdings of
previous prison conditions cases: “when a prison regulation
impinges on inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests.”73 Security is a paramount interest of prison
67
Whitley v. Albers, 475 U.S. 312, 312 (1986) (holding that infliction of pain in
the course of prison security measures was an Eighth Amendment violation only if
inflicted unnecessarily and wantonly, and finding that the shooting of a prisoner during a
riot without prior verbal warning did not violate the Eighth Amendment); Rhodes v.
Chapman, 452 U.S. 337, 349 (1981) (holding that the Constitution does not mandate
comfortable prisons, and that prisons which house inmates convicted of serious crimes
cannot be free of discomfort); Estelle v. Gamble, 429 U.S. 97, 97 (1976) (holding that while
deliberate indifference to a prisoner’s serious illness or injury constitutes cruel and
unusual punishment in violation of Eighth Amendment, inadvertent failure to provide
adequate medical care to prisoner would not violate the Eighth Amendment).
68
Rhodes, 452 U.S. at 347 (holding that prison conditions that involved the
wanton and unnecessary infliction of pain, or deprived inmates of basic needs or the
minimal civilized measure of life’s necessities, violated the Eighth Amendment).
69
501 U.S. 294 (1991).
70
Id. at 304.
71
Id. at 300.
72
475 U.S. 312, 320-21 (1986).
73
482 U.S. 78, 89 (1987).
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administration, and administrators must be given wide
discretion to determine how to provide it.74
Once the fiction of transition gives way to the
recognition of the reality of decades of confinement, the future
of death-row-style confinement must depend uniquely on the
security justification. Decades of idleness, isolation, and close
confinement are unjustifiable as transitional for persons of any
age. Potent as the security rationale may be in providing an
Eighth Amendment blessing for death row conditions, security is
an inapposite justification for death row confinement for the
elderly. A prisoner who is dependent on the kindness of guards
and fellow prisoners to comb his hair or walk to the shower does
not require death row level security. The security rationale
collapses when confronted with the realities of confining
seventy- and eighty-year-old prisoners in death row conditions.
The needs of the condemned elderly, as well as prison
security needs, suggest that these elderly should be housed and
cared for much as the growing legions of geriatric general
prison population inmates created by the current sentencing
regime75 are housed and cared for.76 Increasingly, the general
population’s elderly are segregated for appropriate care for
reasons of both efficiency and humanity.77 The trend towards
providing more age appropriate conditions for elderly prisoners
implicates the Eighth Amendment prohibition of cruel and
unusual punishment with respect to the aged of death row.
Should age appropriate care advance to the status of a norm of
prison administration, neither the crabbed conception of basic
human needs expressed in Rhodes and Wilson nor the
deliberate indifference standard enshrined in those cases
would be a barrier to the recognition that the Eighth
74
See also Procunier v. Martinez, 416 U.S. 396, 404-05 (1989) (supporting
deference to security judgments of prison officials in recognition of institutional
competence and also holding that federalism requires deference on the part of federal
courts to state prison authorities).
75
The era of long mandatory sentences and the curtailment of parole has
produced a large and growing geriatric general population in prison. See Joann Brown
Morton, Implications for Corrections of an Aging Prison Population, 5 CORRECTIONS
MGMT. Q. 78, 78-88 (2001); see also Ronald H. Aday, Golden Years Behind Bars: Special
Programs and Facilities for Elderly Inmates, 58 FED. PROBATION 47, 9-11 (1994).
76
Bruce Gross, Elderly Offenders: Implications for Correctional Personnel,
FORENSIC EXAMINER, Spring 2007, at 59-61 (describing prisons as designed for young
offenders and as accelerating the deterioration in mental and physical fitness of the aged,
and also their inability to walk fast enough, to see and hear well enough, to negotiate
prison life, their susceptibility to being preyed upon by younger prisoners, their increased
health care needs, and the challenges they present to prison administration).
77
Aday, supra note 27, at 144-67.
2012]
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Amendment commands appropriate geriatric care for the
elderly of death row as well as general population elderly. A
brief review of the constitutional standards imposed on prison
conditions will facilitate the argument.
In Rhodes v. Chapman, the Court sought for the first
time to establish the limits that the Eighth Amendment
imposes on prison conditions that do not blatantly and
unanswerably violate the commands of the Eighth
Amendment. At issue in Rhodes was the practice of double
celling.78 Whatever the merits of this practice, double celling
does not rise to the level of atrocious maltreatment that had
been held to violate the Eighth Amendment’s prohibition of
cruelty in earlier cases (e.g., whipping prisoners79 and
intentionally or recklessly denying necessary medical care80).
What then of a more general nature applicable to prison
conditions does the Eighth Amendment teach? To answer this
question, Justice Powell returned in Rhodes to Gregg v.
Georgia’s analysis of the history and development of the
Court’s Eighth Amendment jurisprudence81: Justice Powell
relied upon the teaching of Gregg that the Eighth
Amendment’s requirements are not static; rather, evolving
standards of decency prohibit not only the “physically
barbarous”82 but also “the unnecessary and wanton infliction of
pain.”83 Unnecessary and wanton pain includes inflictions of
pain “totally without penological justification.”84 Contrasting
the practice of double celling with deprivation of medical
attention and the systematically brutal, life imperiling
conditions held to violate the Eighth Amendment in Hutto v.
Finney, Justice Powell concluded that, unlike those conditions,
double celling does not “deprive inmates of the minimal
civilized measures of life’s necessities,” such as “essential food,
medical care, or sanitation.”85 Justice Powell also sounds the
theme of deference to prison officials in matters of security86
78
Rhodes v. Chapman, 452 U.S. 337, 340 (1981).
Hutto v. Finney, 437 U.S. 678, 682 (1978).
80
Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
81
Gregg v. Georgia, 428 U.S. 153, 172-73 (1976).
82
Rhodes, 452 U.S. at 346.
83
Id.
84
Id.
85
Id. at 347-48
86
Id. at 349 n.14 (“Moreover, a prison’s internal security is peculiarly a
matter normally left to the discretion of prison administrators.”).
79
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and prison administration.87 Justice Powell thus equated the
apparently more liberal Gregg standard, unnecessary and
wanton infliction of pain without penological justification, with
the more stringent standard, life’s minimal necessities. The
bridge between these two apparently disparate standards is
supplied by Justice Powell in Rhodes by deference to the
institutional competence of prison administrators, who face
resource limitations and are responsible for prison security. Such
deference in effect means that Eighth Amendment review by
courts must be limited to the most blatant and dire privations.
Wilson v. Seiter presented an Eighth Amendment
challenge to a congeries of prison conditions that were alleged
to be systematically inhumane.88 Justice Scalia, writing for a
majority of the Court, explained that even when alleging
systematically inhumane conditions, the prisoner-petitioner
must establish the deliberate indifference of prison officials.89
Justice White offered a vigorous rebuttal in an opinion
concurring in the judgment but protesting the imposition of the
deliberate indifference standard in cases that do not involve
“specific acts or omissions directed at individual prisoners.”90
He argued that the standard was virtually impossible to meet
in a case involving a challenge to systemically inhumane
conditions, and one that could leave prisoners in
constitutionally unacceptable conditions without recourse.91 He
expressed concern that lack of resources would become an
excuse for both constitutionally unacceptable conditions and
the failure of courts to intervene.92 Justice White relied upon
the Gregg standard that prisoners were not to be subjected to
unnecessary pain without penological justification; Justice
Scalia’s opinion for the Court was devoid of reference to that
more demanding formulation, but rather relied solely on the
basic needs, minimal necessities standard of Rhodes.
Let us suppose the day arrives when age appropriate
conditions of confinement for geriatric prisoners advances from
87
Id. at 351-52 n.16 (“For all of those reasons, courts are ill equipped to deal
with the increasingly urgent problems of prison administration and reform. Judicial
recognition of that fact reflects no more than a healthy sense of realism.”).
88
Prisoners were subjected to “overcrowding, excessive noise, insufficient
locker storage space, inadequate heating and cooling, improper ventilation, unclean and
inadequate restrooms, unsanitary dining facilities and food preparation, and housing
with mentally and physically ill inmates.” Wilson v. Seiter, 501 U.S. 294, 296 (1991).
89
Id. at 303.
90
Id. at 309.
91
Id. at 310.
92
Id. at 311.
2012]
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a trend to a norm of prison management: Rhodes and Wilson
will not stand in the way of recognizing that the Eighth
Amendment requires relief from death row confinement and
even substantial parity of treatment with the general
population elderly, provided that security concerns are
recognized to recede for an aged population. The “deliberate
indifference” standard of Rhodes and Wilson would not protect
prison officials who failed to conform to established norms for
carceral care of elderly inmates. Prison administrators cannot
claim ignorance of the standards and norms of their profession.
The Eighth Amendment will command laggards to comply.
Further, the reasons for the current trend toward providing
geriatric care in prisons suggests that the gap between the
minimalist basic needs standard of Justice Scalia in Wilson and
that of avoidance of unnecessary pain in the older cases would
not doom the claim under the more stringent standard. If, as
some contemporary experts and practitioners maintain, age
appropriate care is in fact more efficient, then resource scarcity
does not provide a practical barrier to a conception of basic needs
at least robust enough to avoid physical suffering. Collecting the
elderly in facilities designed to meet the needs of the aged
prisoner could prove both more humane and more efficient.
Appropriate prison geriatric care would then find a home in the
Eighth Amendment and the distinction between death row and
general population in this regard would prove untenable.
The issue before the U.S. Supreme Court in the Lackey
cases has not been long death row confinement but execution of
prisoners long on death row. Let us now examine the case for
an Eighth Amendment bar to the execution of the long
incarcerated elderly.
VI.
DOES THE EIGHTH AMENDMENT TOLERATE THE
EXECUTION OF THE CONDEMNED LONG-SERVING
ELDERLY?
There are two daunting hurdles confronting proponents
of any type of Lackey claim. One hurdle is pragmatic, in that its
recognition produces unacceptable consequences. For if the
general Lackey claim were recognized, it could bring us
perilously close to total abolition.
The second hurdle is the apparent inability of a Lackey
claim to satisfy the demands of the methodology the Supreme
Court employs in determining whether execution constitutes
cruel and usual treatment. This is the doctrinal, or merits,
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problem facing proponents of the proposition that the Eighth
Amendment should recognize a Lackey claim. The difficulty in
sum is that the Court requires evidence that contemporary
standards of decency no longer tolerate execution. The Court’s
method has relied heavily on evidence that legislation in the
states manifests the development of a consensus against the
practice of executing the class in question. Lackey claims
therefore face an apparently insuperable hurdle: no American
legislation has endorsed the claim.
Whether or not the general Lackey claim must fall
before these barriers, I will argue that Lackey-for-the-Elderly
may have a less arduous course. Let us first examine the
pragmatics and then the doctrinal Eighth Amendment support
for barring the execution of the long-serving elderly.
A.
Pragmatics
1. Lackey-for-the-Elderly Is Consonant with the Supreme
Court’s History of Limited, Piecemeal Abolition
Long imprisonment on death row is the norm—not the
exception—for those eventually executed. The Supreme Court
has gradually narrowed the reach of capital punishment but
these reforms do not imply a willingness to trench so deeply as
to challenge the retention of capital punishment as would the
institution of a Lackey regime. A further pragmatic
consideration is the fear that any Lackey-like restrictions on
execution will spur a rush to execution.93
Although the general Lackey claim may be a bridge too
far for the Supreme Court at this juncture, Lackey-for-theElderly may be within the bounds of the achievable. Its
modesty comports with the gradual, piecemeal reformist
trajectory of the Supreme Court’s Eighth Amendment capital
jurisprudence since the 1976 Gregg decision that inaugurated
the contemporary capital punishment regime. For while the
numbers of the aged on death row are increasing, they will
remain a relatively small segment of the long-serving
condemned.94 Their numbers will become large enough for the
93
Justice Thomas observes, “The [Lackey] claim might . . . provide reviewing
courts a perverse incentive to give short shrift to a capital defendant’s legitimate
claims so as to avoid violating the Eighth Amendment right . . . .” Knight v. Florida,
528 U.S. 990, 992 (1999).
94
At year end 2009, 2.6 percent of death row was sixty-five or older and 8.2
percent was sixty or older. CAPITAL PUNISHMENT 2009, supra note 18, at 9 tbl.5.
2012]
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issue of their execution to be salient in the experience of courts
and prisons, but not so large that sparing them will strike a
mortal or near mortal blow to capital punishment.
In the 1970s the United States Supreme Court
considered total abolition of the death penalty but opted
instead for permitting retention provided novel constitutional
strictures were respected. In lieu of total abolition, the Court
embarked upon reform. It required enhanced or “super due
process”95 for death cases, and constricted the reach of capital
punishment.96 The Court gradually augmented a list of crimes
and criminals that were ineligible for the capital sanction.
Jurisdictions wishing to retain capital punishment were
required to devise statutes that would reserve capital
punishment for the worst of the worst murders and murderers.
Only homicides—and among them only the most aggravated
murders—remain eligible for capital punishment.97 Nor are
persons who “did not commit and had no intention of
committing” homicides98 any longer eligible for capital
punishment, eliminating capital liability for persons who take
part in a felony where murder was committed by an
accomplice. Recently the mentally retarded99 and persons less
than eighteen when they killed100 were categorically exempted.
Previously those less than sixteen years of age when they killed
had been exempted.101 All the while, abolitionists and
retentionists vied for political support and for supremacy in the
95
Margaret Jane Radin coined this apt phrase in her article, Cruel
Punishment and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REV.
1143 (1980).
96
See, e.g., Kennedy v. Louisiana, 554 U.S. 407 (2008) (holding that the Eighth
Amendment prohibits the death penalty for the rape of a child); Roper v. Simmons, 543
U.S. 551 (2005) (holding that it is unconstitutional to execute any offender who is under
eighteen at the time the crime was committed); Atkins v. Virginia, 536 U.S. 304, 311, 321
(2002) (holding that executions of mentally retarded criminals are “cruel and unusual
punishments” prohibited by Eighth Amendment); Thompson v. Oklahoma, 487 U.S. 815
(1988) (holding that defendants who are less than sixteen at the time of their crime
cannot be executed); Ford v. Wainwright, 477 U.S. 399 (1986) (holding that it is a
violation of the Eighth Amendment to execute the insane); Enmund v. Florida, 458 U.S.
782 (1982) (holding that the death penalty for those who neither killed nor intended to
kill in the course of a felony constitutes cruel and unusual punishment); Coker v. Georgia,
433 U.S. 584 (1977) (holding that the imposition of the death penalty for rape of an adult
woman violates the Eighth Amendment).
97
Enmund, 458 U.S. at 801.
98
Id.
99
Atkins, 536 U.S. at 304.
100
Roper, 543 U.S. at 551.
101
Thompson, 487 U.S. 815.
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courts.102 The product of these vectors has been partial abolition
by attrition. An unintended consequence of the enhanced due
process regime and the contestation of capital punishment is
that the condemned await final resolution of their cases for
historically unprecedented periods. This long gestation period
gives rise to the Lackey issue—whether it is cruel and unusual
punishment to convert a sentence of death into a sentence of
decades on death row followed by execution.
Relief for the elderly condemned would be another
exclusion of a limited and discrete class. Relief for the entire
class of the long-serving condemned would be a far more
consequential abolitionist step. Indeed, because our capital
punishment regime takes so long to produce executions, a
Lackey rule would be close to a mortal blow to capital
punishment rather than one more in a series of modest
exclusions. The trouble with the Lackey claim is that it breaks
with the established practice of the Supreme Court’s paring
back and chipping away at capital punishment and instead
trenches deeply. By the end of 2009, there were well over six
hundred prisoners who had been on death row for twenty years
or longer, comprising very nearly 20 percent of the total death
row population.103 More than two hundred had been on death
row for twenty-five years or longer.104 Almost 80 percent of longserving inmates were admitted to death row in their twenties
and thirties, with the balance divided almost equally between
nineteen-year-olds and persons forty and older.105 By
comparison, the numbers of death row elderly are relatively
modest. There were approximately eighty individuals sixty-five
or older on death row at the end of 2009.106 A Lackey-for-the
Elderly rule would be consonant with the scope and pace of
gradual retrenchment that has thus far found acceptance in
the Supreme Court. Further, Lackey-for-the-Elderly mimics the
recent exclusion of those under eighteen years of age at the
time they committed a capital crime and the mentally
102
See, e.g., AUSTIN SARAT, WHEN THE STATE KILLS, ch. 6 (Princeton 2001);
Austin Sarat, Capital Punishment as a Fact of Legal, Political and Cultural Life, in
THE KILLING STATE (Austin Sarat, ed., Oxford 1999).
103
CAPITAL PUNISHMENT 2009, supra note 18, at 19 tbl.18.
104
Id.
105
Only 11.1 percent of death row prisoners were forty or older when arrested;
10.5 were nineteen or younger. CAPITAL PUNISHMENT 2008, supra note 24, at 10 tbl.7.
106
On December 31, 2009, 2.6 percent of 3173 total prisoners on death row
were over the age of sixty-five. CAPITAL PUNISHMENT 2009, supra note 18, at 9 tbl.5.
2012]
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1113
retarded107 in that there is an essentially objective, even
arithmetic, definition available for demarcating the class of the
excluded, relieving concerns about manipulation and
undeserving claims. Lackey-for-the-Elderly is therefore a more
practical goal: it would, if embraced by the Supreme Court, be
consistent with its inclinations to date and offer relief to a
cohort whose continued life under the shadow of the gallows is
acutely misaligned with Eighth Amendment values.
2. Would a Lackey-for-the-Elderly Regime Produce a
Rush to Execution?
Would rules sparing the elderly—or, for that matter, all
the long-incarcerated condemned—lead to accelerated rates of
executions for either of these classes of prisoners? Would a
Lackey regime result in “speed rather than accuracy”108 in
capital litigation, a consequence that would dismay defenders
of due process whether or not they are of abolitionist
sympathies?109 Could the adoption of such protection reverse the
trend of secular decline in executions or propel more elderly
and long-serving prisoners into the ranks of those actually
executed? I will argue that these fears are not well founded.
Most execution-prone states share with less active
death-penalty states populations of long-serving and elderly
prisoners. Among the ten most execution-prone states, only
Virginia lacks prisoners who have been on death row at least
twenty-five years.110 Texas has nineteen.111 Florida is the leader
in this class with more than sixty.112 The most execution-prone
states, with the exception of Virginia, do not outperform the
less execution-prone death-penalty states dramatically in the
107
To qualify for the protection of Atkins, an offender must have an IQ no
higher than seventy to seventy-five. Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002).
108
McKenzie v. Day, 57 F.3d 1461, 1467 (9th Cir. 1995).
109
Judge Kozinski expresses the concern about the consequences of a Lackey
regime,
By and large, the delay in carrying out death sentences has been of benefit to
death row inmates, allowing them to extend their lives, obtain commutation
or reversal of their sentences or, in rare cases, secure complete exoneration.
Sustaining a [Lackey] claim . . . would, we fear, wreak havoc with the orderly
administration of the death penalty in this country by placing a substantial
premium on speed rather than accuracy.
Id. at 1467.
110
111
112
CAPITAL PUNISHMENT 2009, supra note 18, at 19 tbl.18.
Id.
Id.
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average number of years prisoners have been on death row.
The national average time in 2009 was 12.7 years.113 For
California, a state that rarely executes, the average was 14.2,114
but it was 13.9 for Florida.115 Georgia did not do much better at
13.3.116 Texas, the leader in executions performed, achieved
10.8.117 Other than Virginia’s stellar 5.4 years,118 the best records
achieved by the ten most execution-prone states were in South
Carolina and Oklahoma, which managed to get below 10 years,
at 9 and 8.9 respectively.119
I base my skepticism on what I consider to be the dim
prospects for efficiency reforms of the death-penalty system.
The number of years to resolve cases has increased over a
decade in which there has been a pronounced secular decline in
the number of executions.120 The ratio, as it were, of systemic
effort per resulting execution has steadily increased. The two
most plausible avenues of reform are money to move cases
more quickly and competently through the system and the
streamlining of the appellate and postconviction process.121 To
date, such measures have either not made a difference in
reversing the secular trend or have failed to garner sufficient
support to be introduced. It is vanishingly unlikely that the
well-documented shortage of qualified trial and appellate
counsel will be addressed any time soon by cash-strapped
states that did not take this step even when their resources
were greater. The prospects for streamlining the process are no
better. The passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996,122 for example, which restricts habeas relief
for death row prisoners, has not reversed the trends to longer
delays and fewer executions. To the frustration of some
retentionists, the underlying cause of the multitiered and timeconsuming legal processes is the so-called super due process for
113
Id.
Id.
115
Id.
116
Id.
117
Id.
118
Id.
119
Id.
120
Despite a steep drop in both the number of executions and the number of
admissions to death row over the decade, time under sentence of death for those
executed increased from eleven years and eleven months in 1999 to fourteen years and
one month in 2009. See CAPITAL PUNISHMENT 2009, supra note 18; see also CAPITAL
PUNISHMENT 1999, supra note 17.
121
The Ninth Circuit Court of Appeals has recently proposed both as solutions
to California’s backlog of death row cases. Alarcon, supra note 54, at 698.
122
Pub. L. No. 104-132, 110 Stat. 1214.
114
2012]
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1115
death required by the Supreme Court coupled with the
matching zeal of pro- and anti-death-penalty litigators. To date,
the political will to execute has not been sufficient to result in
spending public money and court resources on death cases to
reverse the trend toward more time to produce fewer executions.
It is doubtful that the recognition that a Clarence Ray Allen is
too old to execute would galvanize more public and retentionist
reaction than, for example, the Supreme Court’s recent decision
to prohibit execution of child rapists123 or the increasingly more
publicized fact that only a small fraction of those condemned
since 1976 have actually been executed.
Let us look at the reaction to the introduction of a
Lackey-like regime in the Caribbean nation of Jamaica for
possible lessons about the impact of such a regime in the
United States. The Anglophone Caribbean nations retain
capital punishment; the death penalty enjoys strong public and
political support as a consequence of the high rates of murder
and other violent crime these countries suffer.124 Until recently
the Judicial Committee of the Privy Council has been the high
court for all former British dependencies in the Caribbean, a
relationship that is in the early stages of being replaced by a
regional court, the Caribbean Court of Justice. In 1993, the
Judicial Committee ruled in Pratt and Morgan v. The Attorney
General of Jamaica that, under the Jamaican Constitution, it
would constitute inhuman and degrading punishment to
execute a person imprisoned under sentence of death for more
than five years.125 The decision resulted in the commutation of
approximately two hundred death sentences in the region.126
The decision stimulated anti-imperialist and nationalist
resistance and increased momentum for the creation of a
regional court to displace the Privy Council. There were
predictions that the decision would inspire “hanging courts.”127
There have been no executions in Jamaica since Pratt and
123
Kennedy v. Louisiana, 554 U.S. 407, 447, opinion modified on denial of
reh’g, 129 S. Ct. 1 (2008).
124
See ROGER G. HOOD & CAROLYN HOYLE, THE DEATH PENALTY: A
WORLDWIDE PERSPECTIVE 106 (4th ed., Oxford 2008).
125
Pratt & Morgan v. Jamaica, 3 SLR 995, 2 AC 1, 4 All ER 769 (Privy
Council 1993) (en banc).
126
Andrew Novak, The Decline of the Mandatory Death Penalty in Common
Law Africa: Constitutional Challenges and Comparative Jurisprudence in Malawi and
Uganda, 11 LOY. J. PUB. INT. L. 19, 27 (2009).
127
Leonard Birdsong, The Formation of the Caribbean Court of Justice: The
Sunset of British Colonial Rule in the English Speaking Caribbean, 36 U. MIAMI INTERAM. L. REV. 197, 203-04 (2005).
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Morgan.128 The Pratt and Morgan decision has been a much
criticized decision by retentionists, but has been criticized by
abolitionist critics as well who fear “hanging courts.”
Would prisoners who might otherwise be left to languish
in obscure corners of death row be victims of Lackey-for-theElderly? The sluggishness of the death-penalty system in the
United States, Jamaica, and other countries where stringent
due process standards are respected suggests that fears of a
rush to the gallows are misplaced. My argument is necessarily
speculative, as there is no record to consult for the
counterfactual Lackey scenario in the United States. My
argument relies on both the natural experiment produced by
Pratt and Morgan in Jamaica and the history of protracted
multitiered litigation in death cases necessary to satisfy
contemporary due process and human rights standards.
B.
On the Merits: The Case that the Eighth Amendment
Bars Execution of the Long-Serving Elderly
The case for Lackey-for-the-Elderly is in effect a
specialized and augmented version of the Lackey claim.
Support for the Elderly version therefore rests in part on the
strength of the case for the general Lackey claim. Likewise,
understanding the additional merits of the Elderly claim
requires review of the case for the general Lackey claim.
1. In Recent Cases, the Supreme Court’s Eighth
Amendment Methodology Has Become More
Favorable to the Success of Lackey Claims
At first blush, the chances for success of the Lackey
claim look bleak. Justice Thomas pointed out that he was
“unaware of any support [for it] in the American constitutional
tradition or in this Court’s precedent”129 and equally that no
state or federal court has recognized a Lackey claim since the
first denial of certiorari in Lackey v. Texas.130 His point must be
conceded, for it was accurate when made in 1999 and remains
true at this writing. However, a methodological shift in recent
Supreme Court cases considering whether the Eighth
128
HOOD & HOYLE, supra note 124, at 106.
Knight v. Florida, 528 U.S. 990, 990 (1999) (Thomas, J., concurring in
denial of certiorari for a Lackey claim).
130
Id. at 461.
129
2012]
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1117
Amendment permits execution for particular classes of
offenders suggests that Lackey claims may not be as outside
the pale as its critics would prefer.
The Eighth Amendment standard by which the
constitutionality of a form of punishment is to be judged was
established in Trop v. Dulles: whether the punishment
comports with “evolving standards of decency that mark the
progress of a maturing society.”131 The Supreme Court has
barred the execution of several classes of persons who were
traditionally subject to capital punishment because the
punishment for them would be cruel and unusual in light of
contemporary standards. Invoking the Eighth Amendment’s
Cruel and Unusual Punishment Clause, the Court has
excluded the mentally retarded,132 and youthful murderers,133
and those who have been convicted because, during the course
of committing a felony, an accomplice took life.134
In two of the recent cases, Atkins v. Virginia135 and Roper
v. Simmons,136 the Court relaxed the requirements for
exclusion, to the dismay of the dissenting justices. The Court
relied more heavily than in earlier cases on its “own judgment”
or “independent judgment” and less on objective indicia of an
evolution in public values. Although also continuing to rely on
“objective” indicia of a national consensus to be found in
legislative enactments and the practice of the states, the
Court’s majorities were satisfied with less robust “objective”
evidence of the development of a national consensus.137 The
Court’s reliance on its “own judgment,” as will be seen, is
deeply rooted in its capital Eighth Amendment precedents, and
bodes well for the future reception of Lackey claims.
Writing for the Court in Roper, Justice Kennedy
reviewed the method by which a determination is to be made as
to whether offenders who kill before their eighteenth birthday
131
356 U.S. 86, 100-01 (1958).
Atkins v. Virginia, 536 U.S. 304, 321 (2002).
133
Roper v. Simmons, 543 U.S. 551 (2005), abrogating Stanford v. Kentucky,
492 U.S. 361 (1989).
134
Enmund v. Florida, 458 U.S. 782, 801 (1982); see also Tison v. Arizona, 481
U.S. 137 (1987) (refining the Enmund standard and holding that reckless indifference
is sufficient to satisfy intent if the defendant is a major participant in a felony that
results in murder).
135
Atkins, 536 U.S. 304.
136
Roper, 543 U.S. 551.
137
In the most recent capital exclusion case, Kennedy v. Louisiana, 554 U.S.
407 (2008), discussed infra at note 165, Justice Kennedy’s majority opinion is yet more
assertive of reliance on normative judgment at the expense of the weight accorded
legislative enactments.
132
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should be categorically exempt from capital punishment. The
three sources of support recognized in previous cases are
“legislative enactments,”138 “state practice,”139 and “our own
judgment.”140 Additionally, the Court looks to foreign and
international law as instructive but not controlling.141 In the
earlier cases, the Court accorded preeminence to statutes.142 In
Coker v. Georgia, for example, the Court relied on the finding
that Georgia was the only jurisdiction whose law authorized
capital punishment for the rape of an adult woman as support
for a constitutional bar against capital punishment for rapists
of adult women.143 The Court again emphasized the importance
of statutes as evidence of the crystallization of consensus in
Enmund v. Florida.144 There the record was less “compelling”145
but nonetheless strong: a large majority of states no longer
permitted the execution of those who neither contemplated nor
intended killing in the course of a felony, such as robbery
during which an accomplice killed.146 But when the Court
barred execution of the mentally retarded in Atkins, only
eighteen of the then thirty-eight death-penalty states, and the
federal jurisdiction, exempted the mentally retarded by
statute.147 In Roper in 2005, the Court conceded that the objective
indicia embodied in statutes was weaker than in the earlier
cases in both Atkins and in the instant case exempting persons
who were not yet eighteen when they committed murder.148
Indeed, a bare majority of the death-penalty states had no
statutory prohibition against the execution of the mentally
retarded or murderers who were seventeen years of age but not
yet eighteen when they killed.149 The majority opinions in the two
cases reasoned that recent additions to the ranks of prohibiting
states, prohibitory statutes of more long standing, and the
addition of the bloc of states that had abolished capital
punishment entirely established that we had arrived at a
138
Roper, 543 U.S. at 563.
Id.
140
Id.
141
Id. at 575-78.
142
Legislation is the “clearest and most reliable objective evidence of
contemporary values.” Penry v. Lynaugh, 492 U.S. 302, 331 (1989), abrogated by
Atkins v. Virginia, 536 U.S. 304 (2002).
143
Coker v. Georgia, 433 U.S. 584, 595-96 (1976).
144
458 U.S. 782 (1982).
145
Id. at 793.
146
Id. at 792.
147
Atkins, 536 U.S. at 313.
148
Roper v. Simmons, 543 U.S. 551, 597-98 (2005).
149
Id. at 564.
139
2012]
A MODEST PROPOSAL
1119
national legislative consensus against the execution of the
mentally retarded and youthful murderers.150 Inevitably, to
compensate for the comparative weakness of the “objective” case
relative to its strength in previous cases establishing categorical
exclusions, the arguments for the Court’s independent judgment
must bear greater weight in the two recent cases.
The dissenters’ verdict is that the Atkins and Roper
majorities have substituted their own subjective moral
judgments for the objective social consensus demanded by Trop
v. Dulles and the Court’s previous Eighth Amendment
jurisprudence of capital exemption. Justice Scalia’s dissents in
both cases are scathing, for he found that the Court has
abandoned reliance on social consensus as the touchstone of
evolving Eighth Amendment values in favor of “the subjective
views of individual Justices.”151 In his Atkins dissent, Justice
Scalia declared, “Seldom has an opinion of this Court rested so
obviously upon nothing but the personal views of its Members.”152
In Roper, he again dissented, “Because I do not believe that the
meaning of our Eighth Amendment . . . should be determined by
the subjective views of five Members of this Court . . . .”153
Plausible as this criticism may appear initially, it is
misleading to characterize the majorities’ reliance on their
independent judgment as either merely “subjective” or as a
jurisprudential departure. The Court in Atkins and Roper
reverts to a well-established method of normative analysis
employed in Eighth Amendment cases, with roots that go back
at least as far as the foundation of the contemporary capital
regime (i.e., to Gregg v. Georgia). Chief Justice Rehnquist and
Justice Scalia, dissenters in Atkins and Roper, rejected this
approach. Their view prevailed temporarily in Stanford v.
Kentucky.154 In that case the Supreme Court, in an opinion
authored by Justice Scalia, repudiated the previously
established reliance on the independent judgments of the
justices as an ingredient in determinations of contemporary
standards of decency.155 But in Atkins, this holding of Stanford
150
Id. at 564-68.
Atkins, 536 U.S. at 341 (Scalia, J., dissenting) (quoting Coker v. Georgia,
433 U.S. 584, 592 (1976)).
152
Id. at 338.
153
Roper, 543 U.S. at 608.
154
Stanford v. Kentucky, 492 U.S. 361 (1989) (holding that the imposition of
capital punishment on an individual for a crime committed at sixteen or seventeen years
of age did not violate evolving standards of decency and thus did not constitute cruel and
unusual punishment under the Eighth Amendment), abrogated by Roper, 543 U.S. 551.
155
Id. at 378-80.
151
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proved to be a spur, a single shoot without progeny. The Court
in Atkins and Roper reverted to reliance on the independent
judgment of the justices as relevant to its determination of the
Eighth Amendment propriety of capital punishment. Their
judgment was inevitably normative, but this does not entail
that it was merely subjective. The Atkins and Roper majority
opinions apply normative standards regularly employed in the
Court’s capital Eighth Amendment precedents.
In Coker v. Georgia, the first of the categorical exclusion
cases, the Court held that “the Constitution contemplates that
in the end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under the
Eighth Amendment.”156 The Court arrived at that judgment by
inquiring into whether capital punishment serves the
constitutionally required goals of punishment:
Under Gregg, a punishment is “excessive” and unconstitutional if it
(1) makes no measurable contribution to acceptable goals of
punishment and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail the
test on either ground.157
The goals of punishments, as reiterated in all the
Supreme Court cases mandating capital exclusion, are
deterrence and retribution: “The death penalty is said to serve
two principal social purposes: retribution and deterrence of
capital crimes by prospective offenders.”158
Since Coker, and relying on Gregg,159 the Court has held
that unless capital punishment advances the penal goals of
156
Coker, 433 U.S. at 597 (quoted in Atkins, 536 U.S. at 341 and Roper, 543
U.S. at 590).
157
Id. at 592 (White, J.). The sentence preceding that quoted in the text above
details the precedents for this holding:
In sustaining the imposition of the death penalty in Gregg, however, the
Court firmly embraced the holdings and dicta from prior cases, Furman v.
Georgia, [408 U.S. 238]; Robinson v. California, 370 U.S. 660 (1962); Trop v.
Dulles, 356 U.S. 86 (1958); and Weems v. United States, 217 U.S. 349 (1910), to
the effect that the Eighth Amendment bars not only those punishments that are
“barbaric” but also those that are “excessive” in relation to the crime committed.
Id. at 591-92.
158
Gregg v. Georgia, 428 U.S. 153, 183 (1976) (plurality opinion); see also
Coker, 433 U.S. at 592; Enmund v. Florida, 458 U.S. 782, 782-83 (1982); Atkins, 536
U.S. at 319; Lackey v. Texas, 514 U.S. 1045 (1995); Roper, 543 U.S. at 552.
159
And indeed on Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (holding
that the imposition of the death penalty on offenders convicted of rape would violate
the Eighth Amendment).
2012]
A MODEST PROPOSAL
1121
retribution or deterrence, it is barred by the Eighth Amendment.
In debates about the Lackey issue, retribution is to the fore and
deterrence recedes in that the plausibility of additional
deterrent value in execution after decades of incarceration in the
shadow of the gallows is difficult to defend.160 The Court’s Lackey
debates therefore turn on whether decades-plus-death is
excessive retribution offensive to the Eighth Amendment. In
Atkins and Roper, the Court held that in its independent
judgment, the deficiencies in judgment and self-control
attributable to mental disability and immaturity rendered the
retarded and youthful murderers less culpable than normal and
mature murderers.161 Thus, these classes were not among the
most culpable murderers for whom capital punishment was
retributively justified, a judgment reflected in a large and
growing number of statutory prohibitions.162
Critics of the Lackey claim will of course hasten to note
that the Lackey claim has not been endorsed in a single American
statute or adopted by any American court. How then could the
Lackey claim prevail within the framework established in the
capital exclusion cases? Justices Stevens and Breyer adumbrated
the available Eighth Amendment arguments in their demurrals
from the denial of certiorari in the Lackey cases. There are two
crucial lines of argument necessary to support Lackey claims. One
is of course the standard Eighth Amendment argument that
decades-plus-death is retributively excessive punishment. The
second breaks new Eighth Amendment ground. Previously, cases
acknowledging capital exclusion have tested whether
traditionally accepted practices had outlived their social mandate.
The Lackey claim, by contrast, questions whether an emergent
practice is permitted by the Eighth Amendment.
The Lackey claim is directed against a novel form of cruel
punishment alien to tradition—persons serving decades on death
row, perhaps half a lifetime, perhaps into old age. It is directed
against a cruel innovation rather than a cruel relic. The model of
social history implicit in Trop v. Dulles is progressive. It deserves
160
In Lackey v. Texas Justice Stevens writes, “additional deterrent effect from
an actual execution now, on the one hand, as compared to 17 years on death row
followed by the prisoner’s continued incarceration for life, on the other, seems
minimal.” 514 U.S. at 1046. This proposition resounds through subsequent Lackey
cases. In Knight v. Florida, Justice Thomas apparently concedes as much in noting
that Justice Breyer’s criticism of execution after long delay for lack of additional
deterrent effect would be remedied by reverting to something like our earlier and
sprightlier system. 528 U.S. 990, 990 n.1 (1999).
161
Roper, 534 U.S. at 552.
162
Atkins, 536 U.S. at 321; Roper, 543 U.S. at 571.
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the old-fashioned designation “whiggish” in that it assumes that
society continually improves, becomes ever more humane. It can
be argued, therefore, that the Court’s Eighth Amendment
jurisprudence of capital exclusion is restricted by Trop v. Dulles to
delivering the coup de grace to decaying practices. The alternative
is to recognize the limitations of the Trop v. Dulles model when
confronted by historically novel forms of cruelty. Indeed, the
Supreme Court in Atkins, and more starkly in Roper, without
fully acknowledging the fact, relied less on a history of American
progress and more on normative judgment to ban practices
permitted by the majority of death-penalty states. In Roper
especially, the majority also turned to the very strong support for
barring the execution of persons under eighteen in international
and foreign law.163 Indeed, whether or not one shares the
dissenting justices’ pejorative view of the majority opinions in
Atkins and Roper, those justices are correct that the majority
opinions rely on normative judgments and foreign and
international law to a far greater extent than previous Eighth
Amendment capital exclusion cases. The Lackey claim, like the
bar on the execution of youthful offenders, enjoys robust support
in international and foreign law.
In the most recent of the capital exclusion cases, Kennedy
v. Louisiana, the Court delivered yet another blow to the vaunted
importance of state legislative consensus in its Eighth
Amendment capital exclusion methodology.164 Justice Kennedy
considered an objection to the Court’s holding that a national
consensus had developed against the execution of rapists of
children, based on the small number of states that authorized
their execution and the fact that no child rapist had been
executed by any state in forty years.165 The objection was that the
Court was “blocking” the development of a national consensus
163
Thus, Justice Kennedy writes,
The overwhelming weight of international opinion against the juvenile death
penalty is not controlling here, but provides respected and significant
confirmation for the Court’s determination that the penalty is
disproportionate punishment for offenders under 18 . . . . The United States
is the only country in the world that continues to give official sanction to the
juvenile penalty. It does not lessen fidelity to the Constitution or pride in its
origins to acknowledge that the express affirmation of certain fundamental
rights by other nations and peoples underscores the centrality of those same
rights within our own heritage of freedom.
Roper, 543 U.S. at 554.
164
554 U.S. 407 (2008).
165
Id. at 409.
2012]
A MODEST PROPOSAL
1123
rather than relying on such a consensus.166 Louisiana argued that
the Coker decision had been read broadly to ban execution for
nonlethal child rape rather than specifically and only the rape of
an adult woman. Kennedy v. Louisiana clarified any ambiguity
about Coker. Coker prohibited execution for the rape of an adult
woman, not nonlethal child rape.167 Thus, the argument goes,
legislatures in the states did not appreciate that they were free to
permit or forbid execution for child rapists. The question of
whether a national consensus existed against the practice was
therefore untested in the states.168 The Court should wait upon the
day when legislatures have affirmatively banned execution for
child rapists to declare a national consensus rather than act in
the face of legislative inaction.169 To ban execution of child rapists
under the Eighth Amendment would stifle the development of a
consensus. To act in the absence of legislative bans would violate
the Court’s methodological commitment to look to state
legislatures for evidence of national consensus.
Justice Kennedy’s rejoinder to this criticism would seem to
diminish further the relative weight of the “objective” component
in Eighth Amendment capital exclusion methodology. He
associated “evolving standards of decency” with the Court’s duty
to restrain the use of capital punishment to insure its use only for
crimes that are judged to be among the worst, apparently at the
expense of the importance of the record of legislative enactments.
He wrote,
These concerns overlook the meaning and full substance of the
established proposition that the Eighth Amendment is defined by
“the evolving standards of decency that mark the progress of a
maturing society.” Confirmed by repeated, consistent rulings of this
Court, this principle requires that use of the death penalty be
restrained. The rule of evolving standards of decency with specific
marks on the way to full progress and mature judgment means that
166
See id. at 446 (“Our determination that there is a consensus against the
death penalty for child rape raises the question whether the Court’s own institutional
position and its holding will have the effect of blocking further or later consensus in
favor of the penalty from developing. The Court, it will be argued, by the act of
addressing the constitutionality of the death penalty, intrudes upon the consensusmaking process. By imposing a negative restraint, the argument runs, the Court makes
it more difficult for consensus to change or emerge. The Court, according to the
criticism, itself becomes enmeshed in the process, part judge and part the maker of
that which it judges.”).
167
Id. at 426-27, 429.
168
Id.
169
Id. at 446.
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resort to the penalty must be reserved for the worst of crimes and
limited in its instances of application.170
In sum, in its three most recent capital exclusion cases,
the Supreme Court has tempered its reliance on the tally of
state enactments and reasserted its reliance on its own
normative judgment. Normative analysis of whether capital
punishment for a crime or a class of offenders is excessive
punishment has been a factor in the Court’s capital
jurisprudence since Gregg v. Georgia. In the recent cases,
Atkins and Roper—and in a more limited and subtle way
Kennedy v. Louisiana—the Court has recalibrated the
importance of normative analysis relative to the so-called
“objective indicia” of evolution of standards. The Supreme
Court could travel further down the road already taken and
recognize the Lackey claim—or the more modest Lackey-forthe-Elderly claim.
2. Decades-Plus-Death Is Excessive Punishment
Forbidden by the Eighth Amendment
Justices Stevens and Breyer consider at least three
arguments in favor of the general Lackey claim in their dissents
from denial of certiorari in Lackey cases. The touchstone
argument is that decades-plus-death is retributively excessive
punishment and therefore lacks an Eighth Amendment
justification. The justices also argue that decades-plus-death is
sanctioned neither by our legal tradition nor by considered or
express political recognition. Additionally, Stevens and Breyer
find support for Lackey in the jurisprudence of foreign
constitutional courts and international law.171
a. Decades-Plus-Death Is Retributively Excessive
Punishment
The capital exclusion cases hark back to Gregg v.
Georgia for the framework for understanding retributive
170
Id. at 446-47 (citations omitted).
From the retirement of Justice Stevens in 2010 to the present writing, no
other justice has publicly endorsed granting certiorari to a Lackey claim. Should the
day arrive when certiorari is granted, a stock of arguments for granting the petition is
in hand in the dissents from denial of certiorari written by Justices Stevens and
Breyer. Indeed, Justice Stevens’s memorandum to the denial of certiorari in Lackey v.
Texas in 1995 supplies jurisprudential seed sufficient to the task. Lackey v. Texas, 514
U.S. 1045 (1995) (Stevens, J., mem. respecting denial of cert.).
171
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justification and retributive excess. Justice White wrote in
Coker v. Georgia,
Under Gregg, a punishment is “excessive” and unconstitutional if it
(1) makes no measurable contribution to acceptable goals of
punishment and hence is nothing more than the purposeless and
needless imposition of pain and suffering; or (2) is grossly out of
proportion to the severity of the crime. A punishment might fail the
test on either ground.172
“Gregg instructs,” Justice Kennedy reiterated in
Kennedy v. Louisiana, that “the two distinct purposes served by
the death penalty” are “retribution and deterrence of capital
crimes.”173 Justices Stevens and Breyer in their Lackey opinions
explored arguments for the thesis that this novel imposition of
decades-plus-death is not justified by a gain in deterrence174 and
exceeds the limits of justified retribution. Punishment that is
justified neither as deterrence nor as an appropriate level or
type of retribution is “gratuitous infliction of suffering” and as
such not tolerated by the Eighth Amendment.175
This
doctrine
that
constitutionally
legitimate
punishment must respect limits is well grounded in the Court’s
Eighth Amendment precedents; yet the bite of the doctrine
seems to elude some critics of the Lackey claim, perhaps in part
because judges sympathetic to Lackey claims use emotionally
and morally charged terms to describe long tenure on death
row—terms like “dehumanizing,”176 “horrible,”177 and “frightful.”178
These usages may invite dismissal as merely expressing
personal moral repugnance. Justice Thomas, for example,
responds dismissively to what he takes to be a misplaced focus
on the suffering of the long incarcerated condemned rather than
the gruesome suffering inflicted by the justly condemned.179 But
172
Coker v. Georgia, 433 U.S. 584, 592 (1976).
Kennedy, 554 U.S. at 441.
174
Deterrence is invoked but not extensively treated in the Lackey opinions.
Lackey, 514 U.S. at 1046. In Atkins, Justice Stevens acknowledges the controversy and
uncertainty that swirls around arguments about whether the death penalty deters, and
suggests that judgments about deterrence should be left to legislatures. Atkins v.
Virginia, 536 U.S. 304, 318-19 (2002).
175
Gregg v. Georgia, 428 U.S. 153, 183 (1976).
176
Lackey, 514 U.S. at 1046 n.* (Stevens, J.) (quoting People v. Anderson, 493
P.2d 880, 894 (Cal. 1972)).
177
Id. (quoting In re Medley, 134 U.S. 160, 172 (1890)).
178
Id. (quoting Furman v. Georgia, 408 U.S. 238, 288-89 (1972)).
179
Justice Thomas gives a detailed description of the extensive torture inflicted
on a murder victim by Lackey petitioner William Lee Thompson and his codefendant:
173
Justice Stevens altogether refuses to take into consideration the gruesome
nature of the crimes that legitimately lead States to authorize the death
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the Lackey claimant is not contesting the constitutionality of
capital punishment as retribution for cruelly taking life. Justice
Thomas’s rejoinder misses that the Lackey claimant is arguing,
and to this extent correctly, that the Eighth Amendment
imposes limits on punishment even on those most deserving of
punishment. The Eighth Amendment would not, for example,
allow a state to inflict drawing and quartering, or the burning of
entrails while alive, as the prelude to or the method of execution
regardless of how hideous the crime or how cruel the criminal.
To meet Lackey proponents on the ground on which they are
arguing, the proper rejoinder must include an argument that
decades-plus-death is not excessive punishment for the worst
murders or the worst murderers in the light of contemporary
standards of decency.
Another example of a misleading rejoinder is that of
Judge Kozinski in the Ninth Circuit’s Mackenzie v. Day,180 a
case that raises a Lackey claim. Judge Kozinski wrote, “By and
large, the delay in carrying out death sentences has been of
benefit to death row inmates, allowing them to extend their
lives,” and pursue various forms of legal relief or
commutation.181 Intuitively, there is certainly something to be
said for remaining in life as well as for the chance for relief
from a death sentence. However, Judge Kozinski implicitly
compared death plus delay with the prospect of prompt
execution. Justice Stevens has concluded that delay in
executions is “inescapable”182 in our death-penalty system. If
Stevens is correct—and history to date certainly bears him
out—the proper way to frame the Eighth Amendment issue is
penalty and juries to impose it. The facts of this case illustrate the point. On
March 30, 1976, petitioner and his codefendant were in a motel room with the
victim and another woman. They instructed the women to contact their
families to obtain money. The victim made the mistake of promising that she
could obtain $200 to $300; she was able to secure only $25. Enraged,
petitioner’s codefendant ordered her into the bedroom, removed his chain
belt, forced her to undress, and began hitting her in the face while petitioner
beat her with the belt. They then rammed a chair leg into her vagina, tearing
its inner wall and causing internal bleeding; they repeated the process with a
nightstick. Petitioner and his codefendant then tortured her with lit
cigarettes and lighters and forced her to eat her sanitary napkin and to lick
spilt beer off the floor. All the while, they continued to beat her with the
chain belt, the club, and the chair leg. They stopped the attack once to force
the victim to again call her mother to ask for money. After the call, petitioner
and his codefendant resumed the torture until the victim died.
Thompson v. McNeil, 129 S. Ct. 1299, 1302 (2009) (Thomas, J., concurring).
180
McKenzie v. Day, 57 F.3d 1461 (9th Cir. 1995).
181
Id. at 1467.
182
Thompson, 129 S. Ct. at 1300.
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not as a choice between dispatch and delay, but whether or not
decades-plus-death (the system we have had for thirty years) is
excessively retributive. Perhaps for many of the condemned,
periodic torture would be preferable to certain and immediate
death, but that does not render torture plus death a sentence
that would survive Eighth Amendment review. Again in the
Ninth Circuit, Judge Fletcher, sympathetic to the Lackey claim,
evokes the life on death row of a Lackey claimant who has
served twenty-three years on death row:
For twenty-three years, Ceja has suffered the anxiety of impending
death and the greatly restricted activity allowed death row inmates.
During that time, Ceja has had an execution date set at least five
times: February 8, 1978; September 24, 1980; May 11, 1983; December
19, 1984; and January 21, 1998. For 23 years, Ceja has lived in
solitary confinement, much of it in the typical death row cell on Cell
Block 6 at the Arizona State Prison in Florence. Those cells are little
more than a 7’ x 10’ windowless concrete box with a metal sink and
toilet and a concrete slab for a bed. Activity outside that cell is
typically limited to 3 one-to-two hour periods per week in which the
inmate may shower or exercise. Visitations and phone privileges are
much more limited than those for the general prison population. Many
of a death row inmate’s neighbors are deeply disturbed men
responsible for some of the most notorious murders in Arizona.183
When Justices Stevens or Breyer called attention to
such severe privations and anxieties, it would miss the Eighth
Amendment point to dismiss their sympathy for the Lackey
claim as merely an expression of their personal repugnance
contemplating the suffering of the condemned. In Lackey v.
Texas, Justice Stevens sketched the argument that after
seventeen years awaiting death, the length of Lackey’s death
row incarceration, there was little or no additional deterrent or
retributive value to be achieved by executing him and hence no
Eighth Amendment justification for execution.184 Let us suppose
for the sake of argument that Justice Stevens underestimated
the deterrent or retributive value and overestimates the
suffering, exacted from Lackey in seventeen years, such that the
commutation of his sentence to life imprisonment would cheat
justice and the hangman. Suppose a prisoner were sentenced to
die at twenty and executed at sixty after having spent forty years
on death row. Suppose a person sentenced at thirty is executed at
seventy-five. It is difficult to resist, once it is acknowledged that
the Eighth Amendment’s Cruel and Unusual Punishment Clause
183
184
Ceja v. Stewart, 134 F.3d 1368, 1368-69 (9th Cir. 1998).
Lackey v. Texas, 514 U.S. 1045, 1045-46 (1995).
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is a doctrine of limitation, that a limit beyond which deterrence is
exhausted and retribution is excessive has been reached at some
number of years under sentence of death. The method of
calculating the Eighth Amendment limit may not be easily
agreed upon. Indeed, the line drawn may well be to some extent
arbitrary, if no more arbitrary and debatable than maximum
sentences for noncapital crimes. An unavoidable degree of
arbitrariness and disagreement does not relieve the Supreme
Court of the duty to set limits, which the longest serving death
row inmates have surely exceeded.185
In addition to the critical matter of excessive
punishment, the opinions of Justices Stevens and Breyer in the
Lackey cases advance two further arguments for hearing and
indeed granting Lackey petitions that the Court has endorsed
in its capital exclusion cases.
b. The Long Delay Departs from the Traditional
Practice Sanctioned by the Constitution
Capital punishment is sanctioned by the U.S.
Constitution186 and is enshrined in its text.187 However, to the
extent that the institutions and practices of the late eighteenth
century remain guides to constitutionality today,188 no such
provenance can be claimed for periods of a decade or more
awaiting execution or reduction of sentence. The practice of
executing within “days or weeks”189 cannot justify the
contemporary national average of twelve years (or even that of
the most efficient state, Virginia at 5.4 years190), much less
within two and three decades. Of course, the anti-Lackey jurist
replies that contemporary review processes produce these
185
Lackey petitioner William Lee Thompson, for example, had been on death row
for thirty-two years when his petition was denied in 2009. Thompson, 129 S. Ct. at 1303-04.
186
Gregg v. Georgia, 428 U.S. 153, 169 (1976) (“We now hold that the
punishment of death does not invariably violate the Constitution.”).
187
U.S. CONST. amend. V (“No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,
except in cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject for the same
offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal
case to be a witness against himself, nor be deprived of life, liberty, or property,
without due process of law.”).
188
“Evolving standards of decency” determine the extent to which historic
practices not deemed “cruel and usual” heretofore continue to pass Eighth Amendment
muster. Trop v. Dulles, 356 U.S. 86, 99-101 (1958).
189
Knight v. Florida, 528 U.S. 990, 995 (Breyer, J.).
190
CAPITAL PUNISHMENT 2009, supra note 18, at 19 tbl.18.
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A MODEST PROPOSAL
1129
delays and that prisoners exploit them. But the bare fact that
capital punishment has been so constrained by due process as
to require long intervals between condemnation and execution
does not satisfactorily answer the question of whether such
delays should be considered unconstitutionally cruel. They
cannot be justified as sanctioned by tradition imported from
England, or by the worldview of the Founders, or by American
practice prior to the late twentieth century. Decades of
uncertainty and waiting were unknown within the tradition.
c. Long Delay Lacks the Legitimacy of Legislative
Enactment
A related argument is that the decades-plus-death
sentence lacks the legitimacy of legislative enactment. No
American legislature has ever authorized this penalty. A
rejoinder to this argument is that no legislature has enacted
legislation prohibiting the execution of the long serving. In Ceja
v. Stewart, Judge Fletcher offers an explanation for this lack of
positive endorsement: “There has never been such a sentence
imposed in this country—or any other, to my knowledge.
Neither Arizona nor any other state would ever enact a law
calling for such a punishment.”191 The argument about
constitutional tradition and the argument about legislation are
related in that both criticize decades-plus-death on the grounds
that it is an artifact of the contemporary death-penalty system
devoid of the legitimacy that emanates from deliberate choice
or acknowledgement within political processes.
d. The Repudiation of Execution Long Delayed by
Foreign and International Courts
The Supreme Court’s openness to the persuasive force of
the decisions of foreign and international courts is a thread
that runs through its Eighth Amendment capital
jurisprudence. In the most extensive discussion of foreign and
international law in its Lackey cases,192 Justice Breyer
canvasses the “growing number of courts outside the United
States . . . that accept or assume the lawfulness of the death
penalty”193 that have held that delay is a factor which may
191
192
193
Ceja v. Stewart, 134 F.3d 1368, 1369 (9th Cir. 1999).
Knight, 528 U.S. at 995-97.
Id. at 995.
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render execution inhuman, degrading and cruel. “[P]articularly
instructive” are the opinions of nations that share our legal
traditions.194 Famously, the Judicial Committee of the Jamaican
Privy Council imposed a strict five-year limit on the length of
detention after which execution was no longer legal.195 Justice
Breyer also noted that the Supreme Court of India requires
that delay must be taken into account in sentencing196 and the
Supreme Court of Zimbabwe197 bans execution outright in the
case of delay.198 He expressed concern that the decision199 of the
European Court of Human Rights prohibiting extradition
because of long delay, the so-called “death row syndrome,” is
cruel treatment prohibited by the European Convention on
Human Rights will be followed by other international and
national courts as periods of delay grow longer on U.S. death
rows.200 This proved a prescient concern in that Canada’s
Supreme Court subsequently ruled in part because of long
death row delays that Canada would no longer extradite
persons facing the death penalty to the United States.201
International law and foreign law, particularly
European law and the law of the former Commonwealth
nations with which we share a legal tradition, offer a measure
of support to the Lackey claim in that the three most recent
capital exclusion cases, Atkins, Roper, and Kennedy, all find
foreign and international jurisprudence helpful in resolving
Eighth Amendment questions.
VII.
LACKEY-FOR-THE-ELDERLY
Justices Stevens and Breyer have shown that sound
Eighth Amendment jurisprudence supports the Lackey claim.
Nevertheless, the Lackey claim has not won further overt
support on the Court in the more than fifteen years since
Clarence Lackey’s petition for certiorari was denied. The Court
has refused certiorari to petitioners with nearly twice Lackey’s
194
Id. at 997.
Pratt & Morgan v. Attorney General for Jamaica, [1993] 1 A.C. 1, 29 (P.C.)
(appeal taken from Jam.).
196
Sher Singh v. State of Punjab, A.I.R. 1983 S.C. 465 (India).
197
Catholic Commission for Peace & Justice in Zimbabwe v. Attorney General
[1993], 1 ZIMB. L. R. 239.240 269(S) (Aug. 4, 1999).
198
Knight, 528 U.S. at 995-96.
199
Soering v. United Kingdom, 11 Eur. Ct. H.R. 439 (1989).
200
Knight, 528 U.S. at 996.
201
United States v. Burns, [2001] S.C.R. 283 (Can.).
195
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1131
seventeen-year tenure on death row.202 Perhaps it is time for the
more modest proposal of Lackey relief for the elderly. A petition
for an elderly inmate marshals all the support for the general
Lackey claim and builds on the special claims of the aged. It
trades on the modest scale of the reform it requires.
It should be clear at the outset that the issue raised by
the elderly claim is not the death sentence meted out upon
conviction but whether it is constitutional to continue to subject
persons who have achieved old age on death row to the threat of
execution after long delay from the time of condemnation. If
properly convicted and sentenced after the commission of a
capital crime, it is assumed that the elderly of death row were
culpable and eligible for capital punishment. What then
distinguishes the elderly of death row from their younger peers?
I have argued that the elderly ought to be relieved of
continuing to live in death row conditions whether or not they
remain under threat of execution. Whether or not relieved of
death row conditions of confinement, the elderly will have
logged long detention in all but the most extraordinary cases of
late-life conviction. If we continue to permit death row
conditions for the elderly, their fragility due to aging processes
and death row incarceration argue that their excess suffering
renders their execution an acute violation of Eighth
Amendment retribution norms. If they have been spared some
years of death row incarceration, the prolongation of the ordeal
of waiting for execution should be sufficient to exceed tolerable
retributive standards. This argument rests on the proposition
that frailty makes such forms of stress too intense to pass Eighth
Amendment muster. The decision to spare the elderly from
execution would be an application of a recognized protective norm
systematically respected in society. The elderly are exempted
wholly or in part from social obligations such as labor and
military service on the basis of their frailty.
We do not expect persons in the decline of old age to meet
the challenges posed to those in the prime of life; we exempt and
protect the old as we do the young. Leroy Nash at ninety-three
or Clarence Ray Allen at seventy-six were guilty of heinous
crimes and served many years before their deaths.203 Yet the
202
See, e.g., Johnson v. Bredesen, 130 S. Ct. 541 (2009) (denying certiorari to
petitioner who had been on death row for twenty-nine years); Knight, 528 U.S. 990
(denying certiorari to petitioner who had been on death row for twenty-five years).
203
Nash served twenty-seven years on death row before his death in 2010. Paul
Rubin, Nation’s Oldest Death Row Inmate Will Never Be Executed, PHOENIX NEW TIMES
(Dec. 4, 2008), http://www.phoenixnewtimes.com/2008-12-04/news/nation-s-oldest-death-
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specter of executing the demented and the multiply disabled
aged shames us by violating a protective norm. They may
deserve execution but they are no longer fit for execution. The
Eighth Amendment significance of old age under condemnation
is therefore not about acknowledging an evolution in values but
rather recognizing that familiar values have become salient
because of changes in the institution of capital punishment.
CONCLUSION
The long delays between pronouncement of sentence
and execution, and the considerable uncertainty about whether
any condemned man or woman will be executed in our system
of capital punishment, have given rise to a new form of cruelty
unknown to our ancestors. Delay is not aberrant but normal. It
cannot be purged from the system without doing unacceptable
violence to constitutionally mandated due process. It cannot be
reduced without money for representation and court resources
that have not been allocated to this purpose and will not be
forthcoming. If the general Lackey claim is a victim of its
consequences, perhaps we can manage a modest special case,
Lackey-for-the-Elderly.
row-inmate-will-never-be-executed/. Allen served twenty-three years on death row before
his execution in 2006. Allen v. Ornoski, 435 F.3d 946 (9th Cir. 2006).